SUNDER LAL KHATRI Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THIS is an objection application filed on behalf of the respondent under Sections 30 and 33 of the Indian Arbitration Act, 1940 . The award is in relation to an Agreement entered into between the petitioner and the respondent- DDA for construction of 88 L.I.G. and 144 M.I.G. houses at Shalimar Bagh, New Delhi. The estimated cost of work was Rs. l,01,84,875.00 . Pursuant to Clause-25 of the Agreement Arbitrator was appointed, the award is dated 11.10.91. Ms. Ansuya Salwan, learned Counsel for the respondent-DDA, has argued that the award is a non-reasoned award and the Arbitrator has not given reasons for allowing certain claims of the petitioner, in alternative, she has argued that if this Court comes to a conclusion that reasons are given, the same are perverse. Assailing the award under claim Nos. 3 and 4, Ms. Salwan has argued that the Arbitrator cannot in law award any claim under Clause-10C of the Agreement as that would be squarely hit by Clause-2 of the Agreement. In the objections filed by the respondent the finding of the Arbitrator on this claim has been assailed staling inter alia that the bulk of flats had been completed during 1986 and the rectification of the defects was done upto January 1988 and the Arbitrator has failed to appreciate that if the defects had been got rectified by the respondent, respondent was entitled to claim for the amount spent by it for carrying out of the rectification of the defects and the Arbitrator has failed to consider the said materials and documents and, therefore, the award is vitiated. However, in 'Ground-]' of the objections application, the stand of the respondent on claim under Clause-IOC of the Agreement is as under :- "The a ward in any case is contrary to Clause-3 whereunder the decision of the Engineer-in-Charge that the petitioner failed to execute the work within the stipulated time is final and binding."

(2.) LEARNED Counsel for the respondent has argued that the Superintending Engineer has determined compensation in terms of Clause-2 of the Agreement on account of work not done in the stipulated period of contract, the adjudication of compensation by Superintending Engineer, whose decision is final and binding, therefore, Arbitrator had no jurisdiction to award any claim under Clause-10C of the Agreement. In support of her arguments, she has cited the case of R.S. Rana v. DDA 1993 (2) ALR 165 and M/s.Bharat Furnishing Co. v. DDA and Anr. 1991 (4) Delhi 24 Lawyer 35. The submission urged before me by the learned Counsel tor the respondent on the face of it is devoid of any force. Clause-10C specifically provides tli.i i if during the progress of work the price of any mnaterial incorporated in the works, and /or wages of labour increases as direct rvsult of law coming into force of any fresh law, or statutory rule or order shall accordingly be varied. The only exception is that if in the opinion of Superintending Engineer (whose decision shall be final and binding) delay in the execution of the contract is attributable to the contractor or within the control of the contractor. Whereas, Clause-2 provides that the time allowed for carrying out the work shall be strictly observed by the contractor and shall be deemed to be essence of the contract and if the same is not done with due diligence the contractor shall be entitled to pay compensation as fixed by Superintending Engineer, DDA.

(3.) IN view of discussions above, the objection of the respondent regardINg Claim No. 7 is devoid of any force and the same is dismissed.